AGB

Cooperation

1.1.

The parties will cooperate trustfully and shall inform each other of deviations from agreed procedures or in case of doubts over the correct procedures.

1.2.

In case a customer realizes that his own information or specifications are wrong, incomplete, ambiguous or inoperable, client shall inform DELASOCIAL immediately in writing, stating the consequences if these are apparent to client.

1.3.

The parties will name a designated contact person and substitute which shall be in charge of competent and responsible execution of the project.

1.4.

Changes of contact persons shall be communicated to the other party without delay. Until such communication has been made, the previous contact person or substitute shall be deemed to be authorized to make or receive binding declarations between the parties within the previous scope.

1.5.

The contact persons shall in regular intervals agree on advances and delays in the execution of the project in order to take appropriate measures to ensure execution of the project.

1.6.

DELASOCIAL will record in writing such agreements on progress and delays. The record will be communicated to client. Client has the right that diverging opinions are included in the record. This right shall be executed within one week after communication of the protocol.

Client’s obligation to cooperate

2.1.

The parties will cooperate trustfully and shall inform each other of deviations from agreed procedures or in case of doubts over the correct procedures.

2.2.

Client will allocate the necessary number of staff required for the execution of the project. Such staff shall be accordingly qualified.

2.3.

As far as client has been obliged in writing to supply images, audio, text or similar data, client shall supply such data in a common and appropriate digital format. Should the data need to be converted, client shall bear the required costs associated. Client shall ensure that DELASOCIAL will be granted the required copy- and similar rights.

2.4.

Client shall bear its own cost for cooperation.

Participation of third parties

3.1.

Client shall be liable for third parties that act for or on behalf of client to the extent that client would be liable for an auxiliary person.

3.2.

DELASOCIAL shall not be liable for defects or delays or other contractual obligations towards client that arise from acting of such auxiliary persons of client.

Deadlines / Timeframe

4.1.

Deadlines and delivery times by DELASOCIAL may only be given by the contact person of DELASOCIAL.

4.2.

The parties will agree on a timeframe and deadlines in writing. When a project exceeds a total volume of EUR 50,000.00, a binding timeframe shall be agreed upon. Deadlines that result in default by one of the parties according to section 286 par. 2 German Civil Code (binding deadlines) shall be agreed upon in writing and shall be stated as binding.

4.3.

For defaults due to force majeure (such as, but not limited to, strike, lockout, government orders, general interruption of telecommunication) and default that lies within the responsibility of client (such as, but not limited to, failure to cooperate, failure or default by third parties instructed by client), DELASOCIAL shall not be liable and shall give DELASOCIAL the right to withhold performance under this agreement for the duration of such default, including a reasonable time for restarting. DELASOCIAL will inform client of a case of force majeure.

Change request

5.1.

If client intends to change the scope and / or extent of the project agreed upon, client will inform DELASOCIAL in writing. The parties shall then proceed as stipulated herein. For change requests that can be evaluated on short notice and will require less than 8 hours to be implemented, DELASOCIAL may waive the procedure stipulated in par. 2 – 5 herein.

5.2.

DELASOCIAL will evaluate the impact the change request will foreseeably have on payment, added work required and added time required. Should DELASOCIAL evaluate that added services cannot or can only be supplied later, DELASOCIAL will inform client in writing and will inform client that such change requests can only be evaluated when deadlines are extended accordingly. Should client agree to such extension of deadlines, DELASOCIAL will further evaluate the change request. Client has the right to withdraw the change request at any time. Evaluation of the change requests ends hence.

5.3.

After evaluation of the change request, DELASOCIAL will inform client of the implications of the change request. Such information will include a detailed proposal for execution of the change request or details why such change request cannot be executed.

5.4.

The parties will hence agree on the execution of the change request and stipulate the change request in writing as an amendment to the project-agreement.

5.5.

Should the parties not agree on a change of the project or should the change request procedure end for another reason, the original agreement between the parties shall persist. The same shall apply in the event that client does not agree to an extension of deadlines according to par. 2.

5.6.

Deadlines affected by the change request shall be extended, taking the duration of evaluation of the change request, duration of negotiations between the parties and, if applicable, the duration for execution of the change request into account, including a reasonable period for set up of the changes implied. DELASOCIAL will inform client of the extended deadlines.

5.7.

Client has to bear the costs connected to the changes of the project. This includes, but is not limited to, evaluation of the change request, costs associated with the proposal for execution of the change request and, if applicable, cost of idleness. Costs shall, if the parties have agreed on a daily fee, be calculated on this daily fee and otherwise on the usual fees charged by DELASOCIAL.

5.8.

DELASOCIAL shall have the right to divert from or change the extent or scope of the services agreed upon if such change is deemed to be acceptable for client, taking the reasonable interest of DELASOCIAL into account.

Payment

6.1.

Upon documentation, client shall bear all costs of DELASOCIAL for travel or lodging and payments to third parties that arise due to or out of performance of the project. Travel costs shall only be reimbursed if the distance travels by DELASOCIAL or its staff is greater than 50 km. Time travelling will not be reimbursed of billed. Should DELASOCIAL act for client in connection with services provided by third parties, DELASOCIAL may charge a handling fee of 15%.

6.2.

Payment for DELASOCIAL will be billed on an hourly basis and will be billed monthly unless otherwise stipulated. DELASOCIAL’s hourly fees apply unless otherwise stipulated. DELASOCIAL has the right to amend hourly fees at its sole discretion (sect. 315 BGB). Binding offers accepted by a client replace hourly fees for such projects.

6.3.

Should the parties not have agreed on a payment of DELASOCIAL and could the client reasonably only expect performance of the services delivered only against payment, client shall pay the usual payment to DELASOCIAL. In case of doubt, the hourly fees of DELASOCIAL shall be deemed the usual fee.

6.4.

To all payments and fees, VAT shall be added where applicable

6.5.

Projects that are billed on the basis of a binding and accepted offer, 50% of the payment shall be due at the start of the project and the remaining 50% of the payment at acceptance. A project shall be deemed to be accepted by the client after a go-live.

6.6.

Go-live of a project cleared by a client shall be deemed as acceptance of the project by client. Remaining payment will at latest be due with the acceptance of a project. DELASOCIAL may only refuse go-live of a project or disconnect a project from the internet if a client’s payment is in default for more than 30 days.

Licences

7.1.

DELASOCIAL grants to client a non-exclusive licence, unlimited in time and territory for the use of the project for the contractual purposes. Should the project include software, sects. 69 d and 69 e of the German Copyright Act shall apply. Should the project be designed for an individual internet-domain, a license shall be granted for this internet-domain only.

7.2.

Further use outside the scope specified in par. 1 herein is not permitted. Client is not permitted to grant sub-licences or copy, rent out or otherwise exploit the services provided.

7.3.

Until full payment of the fees, such licence is granted revocable. DELASOCIAL may revoke the licence if and as long as the client is in default with payments.

Infringement of intellectual property rights

8.1.

DELASOCIAL shall indemnify client from all claims of third parties in case of an infringement of intellectual property rights (patents, licences and other intangible rights). Should the client not inform DELASOCIAL without delay of such claims being made by third, such claim for indemnity will cease.

8.2.

In case of such infringement of intellectual property rights, DELASOCIAL may, at its own discretion and on its own cost, and without effect for further claims for damages by client, change the project or services provided after consultation with client and taking client’s interests into account in order to remedy the infringement or obtain necessary licences.

Rescission

9.1.

Client may only rescind from the agreement for reasons that are not based on a defect of the project if DELASOCIAL is responsible for such reason.

Liability

10.1.

DELASOCIAL shall only be liable for intent and gross negligence. DELASOCIAL shall only be liable for slight negligence where cardinal obligations are breached of in case of life, body or health.

10.2.

Liability for slight negligence is limited to foreseeable damages which typically have to be reckoned with. In any case, liability shall be limited to 15% of the total payment under this agreement or 15% or the yearly fee if a framework agreement is entered into by the parties.

10.3.

DELASOCIAL shall not be liable for the loss of data or software such damage is due to the client’s omission to provide data-backups in order to ensure recovery of the data or software lost with reasonable effort.

10.4.

This limitation of liability shall also be applicable for auxiliary persons of DELASOCIAL.

Non-enticement clause

11.1.

Client shall, during the term of the agreement and for a year after this agreement is terminated, not entice staff of DELASOCIAL or employ staff of DELASOCIAL without the consent of DELASOCIAL. In case of culpable infringement of this non-enticement clause, client shall pay to DELASOCIAL a contract penalty which shall be determined by DELASOCIAL and may be contested in court.

Obligation to keep secrecy, Public Relations

12.1.

Documentation made available to the other party, information or experiences shared between the parties shall only be used for the purposes of this agreement and shall not be made available to third parties unless the stipulations of this agreement requires so or are already know by a third party. Third parties within this context are not auxiliary persons, freelancers or subcontractors for the project.

12.2.

Otherwise, the parties shall keep secrecy of the content of this agreement and all information gained during execution of this agreement.

12.3.

The obligation to remain secrecy shall subsist after termination of this agreement.

12.4.

Should a party to this agreement request so, all information submitted to the other party such as strategy papers, documentation of briefings shall be returned to the other party upon termination of this agreement unless the other party has a reasonable interest in keeping such information.

12.5.

Press releases, statements to the public et al. which include information on the other party shall only be made available to the public after previous written (or email) consent by the other party.

Arbitration

13.1.

The parties intend to solve problems arising out of or from this agreement by amicable discussion between the contact persons.

13.2.

Should the parties not find a solution, the parties shall enter into an arbitration process. Should a party not be willing to enter into such arbitration process, the party may file legal proceedings with a competent court and inform the other party previously in writing.

13.3.

In order to initiate an arbitration process, the parties will request arbitration by the arbitration institute of the “Deutscher Multimediaverband”, Kaistrasse 41, 40221 Düsseldorf in order to find an total or partial, final or temporary amicable solution.

13.4.

In order to facilitate arbitration the parties waive the defence of the statute of limitations until one month after the end of the arbitration process regarding all claims from or out of the matter in dispute. The arbitration process shall inhibit the defence of the statute of limitations.

13.5.

Deadlines agreed by the parties shall be prolonged by the time required for a discussion of the problems between the contact persons, the time required for the arbitration process and, if applicable, for the time required to execute solutions agreed upon in the arbitration process, including a required start-up period.

Miscellaneous

14.1.

Assignation of claims may only be made with previous written consent of the other party. Consent may not unreasonably withheld. The stipulations of sect. 354a German Commercial Code shall remain unaffected.

14.2.

A retaining lien may only be asserted with claim from the same contractual relation.

14.3.

Only claims that are undisputed or legally binding may be set off against other claims.

14.4.

DELASOCIAL shall have the right to name client on DELASOCIALS website or other media as a reference client. DELASOCIAL shall further have the right to showcase the project in public or link to the projects unless the client has a reasonable opposing interest.

General terms and conditions

15.1.

Changes and amendments to this agreement shall be made in writing. Notices shall be served in writing. The written form shall be satisfied by email.

15.2.

Should individual stipulations of the agreement or the agreement in total be void, the validity of the remaining stipulations shall not be affected by this. The parties shall replace the void stipulation by a valid stipulation that reflects the economic situation intended to be stipulated. The same shall apply in case of a gap in this agreement.

15.3.

General terms and conditions of client shall not be part of the agreement between the parties.

15.4.

The Law of Germany shall apply. Conflict of laws shall not apply, the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

15.5.

Court of jurisdiction for all disputes from or out of this agreement shall be the court at the business seat of DELASOCIAL.